HomeMy WebLinkAboutCyberShift Inc/SumTotal Systems Inc; 2011-10-14;ASSIGNMENT AND ASSUMPTION AGREEMENT
BETWEEN CITY OF CARLSBAD AND SUMTOTAL SYSTEMS
FOR WORKFORCE MANAGEMENT SYSTEM IMPLEMENTATION SERVICES
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made and
entered into and effective as of the lt+~&\ day of Oc£>c>ej~ ,
20 fl , by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), CyberShift,
Inc., a New York Corporation ("Assignor") and SumTotal Systems, Inc., a Florida Corporation,
("Assignee"), and is made with reference to the following facts:
RECITALS
A. On April 6, 2010, City and Assignor entered into that certain Professional Service
Agreement for Workforce Management System Implementation Services (the "Agreement").
B. On August 12, 2010, City and Assignor entered into Amendment No. 1 to the
Agreement to alter the scope of work to provide additional consulting support to the project.
C. On May 13, 2011, City and Assignor entered into Amendment No. 2 to extend
the agreement for one year (effective April 6, 2011).
D. On March 29, 2011, City and Assignor entered into Amendment No. 3 to the
Agreement to alter the scope of work to provide additional consulting support to the project.
E. Assignor desires to assign its interest in the Agreement, as may have been
amended from time to time, to Assignee. Further, Assignee desires to accept assignment of
Assignor's interest in the Agreement and City consents to the assignment of the interest in the
Agreement from Assignor to Assignee.
NOW THEREFORE, incorporating the above recitals and in consideration of the
covenants and obligations set forth herein, the parties hereto agree as follows:
1. Assignment. Assignor hereby assigns to Assignee all of Assignor's rights and
obligations as set forth in the Agreement.
2. Assumption. Assignee hereby assumes all of Assignor's rights and obligations as
set forth in the Agreement.
3. City Consent. City hereby agrees and consents to the assignment of all of
Assignor's rights and obligations as set forth in the Agreement to Assignee.
4. General Terms and Conditions. The following general terms and conditions shall
apply to this Assignment Agreement.
4.1 Hold Harmless. In addition to the hold harmless provisions contained within the
Agreement, Assignee agrees to indemnify and hold harmless City and its officers, officials,
employees and volunteers from and against all claims, damages, losses and expenses
including attorney's fees arising out of this Assignment Agreement caused by the willful
misconduct, or negligent act, or omission of the Assignee.
4.2. Counterparts. This Assignment Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which, together, shall constitute one and
the same instrument.
4.3 Successors and Assigns. It is mutually understood and agreed that this
Assignment Agreement shall be binding upon City, Assignor and Assignee and their respective
successors. Neither this Assignment, the Agreement nor any parts thereof nor any monies due
or to become due hereunder may be assigned by Assignee without the prior consent of City.
4.4 Governing Law. This Assignment Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with, the laws of the State of California.
4.5 Venue. Any action at law or in equity brought by either of the parties hereto for
the purpose of enforcing a right or rights provided for by this Assignment or the Agreement shall
be tried in a court of competent jurisdiction in the County of San Diego, State of California, and
the parties hereby waive all provisions of law providing for a change of venue in such
proceedings to any other county.
4.6. Notices. Service of any notices, bills, invoices or other documents required or
permitted under this Assignment or the Agreement shall be sufficient if sent by one party to the
other by United States mail, postage prepaid and addressed as follows:
City: Finance Director
City of Carlsbad, Finance Department
1635 Faraday Avenue
Carlsbad, CA 92008
Assignor: CyberShift, Inc.
600 Parsippany
Parsippany NJ, 07054
Assignee: SumTotal Systems, Inc.
2850 NW 43rd Street
Gainesville, Florida 32606
4.7. Nondiscrimination. During the term of this Assignment and the Agreement, the
parties shall comply with the state and federal laws regarding non-discrimination.
4.8 Authority. The parties executing this Assignment on behalf of City, Assignor and
Assignee each represent and warrant that they have the legal power, right and actual authority
to bind City, Assignor and Assignee, respectively, to the terms and conditions hereofA
(Remainder of Page Intentionally Left Blank)
4.9 Severabilitv. Each provision, term, condition, covenant, and/or restriction, in
whole and in part, in this Assignment or the Agreement shall be considered severable. In the
event any provision, term, condition, covenant, and/or restriction, in whole and in part, in this
Assignment or the Agreement is declared invalid, unconstitutional, or void for any reason, such
provision or part thereof shall be severed from this Assignment or the Agreement and shall not
affect any other provision, term, condition, covenant, and/or restriction, of this Assignment or the
Agreement and the remainder of this Assignment or the Agreement shall continue in full force
and effect.
ASSIGNOR: CvberShift. Inc. CITY OF CARLSBAD, a municipal
corporation of the Slate of California
'By: FV.X By1 _________i •u* \\\V\. jv—i-^isr-*-*- •*.—:(sign here) \\ \\ City Manager or Mayor
i)
(print name/title) ATTEST"
'By:
(sign here)
LORRAINE M. WOOD(print name/title) Cjty C|er|< g
ASSIGNEE: SumTotal Systems, Inc.
*By:_
(sign here)
Mil^e
(print name/title)
By:
(sign here)
(print name/title)
(Remainder of Page Intentionally Left Blank)
If required by City, proper notarial acknowledgment of execution by contractor must be
attached. If a Corporation. Agreement must be signed by one corporate officer from
each of the following two groups.
*Group A. **Group B.
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R. BALL, Qit
By:_
AssistanTCity Attorney